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HIGH COURT OF PATNA
P. S. Mishra, J.
Meena Devi and others - Petitioner
Versus
The State of Bihar - Respondent
Cr. Misc. no. 1661 of 1985
Decided on: 25.2.1985
ANTICIPATORY BAIL - SECTION 438 OF THE CODE OF CRIMINAL PROCEDURE - SCOPE AND INTERPRETATION - DISCRETION OF THE COURT - GUIDELINES FOR GRANTING ANTICIPATORY BAIL - POWER COUPLED WITH DUTY - JUDICIAL APPROACH - CONSIDERATIONS FOR GRANTING OR REFUSING BAIL - PROCEDURE FOR MOVING THE HIGH COURT OR COURT OF SESSION - RENEWAL OF PRAYER FOR ANTICIPATORY BAIL AFTER DISMISSAL BY THE SESSIONS JUDGE - LEGALITY AND PROPRIETY.
Fact of the Case:
The petitioners, apprehending arrest in a non-bailable offense, filed applications for anticipatory bail under Section 438 of the Code of Criminal Procedure (CrPC). The court had to determine the scope and interpretation of Section 438, the discretion of the court in granting anticipatory bail, and the procedure for moving the High Court or Court of Session for such relief.
Finding of the Court:
1. Section 438 of the CrPC empowers any person apprehending arrest for a non-bailable offense to apply to the High Court or Court of Session for anticipatory bail. 2. The court has a wide discretion in granting or refusing anticipatory bail, which must be exercised judicially and in accordance with established principles. 3. The court should consider various factors, including the nature and seriousness of the charges, the context of the events leading to the accusation, the likelihood of the applicant absconding, the possibility of tampering with witnesses, and the larger interests of the public or the State. 4. The court may direct an enquiry to ascertain the facts before deciding whether to grant anticipatory bail. 5. A petitioner whose application for anticipatory bail is dismissed by the Sessions Judge may renew the prayer before the High Court, and such an order is not illegal or prejudicial. 6. In appropriate cases, the court may ask the petitioner to first move the Sessions Judge for anticipatory bail before considering the application in the High Court.
Issues: 1. Can a person apprehending arrest for a non-bailable offense directly approach the High Court for anticipatory bail under Section 438 of the CrPC, or must they first move the Court of Session? 2. What are the factors that the court should consider in exercising its discretion to grant or refuse anticipatory bail? 3. Can a petitioner whose application for anticipatory bail is dismissed by the Sessions Judge renew the prayer before the High Court? 4. Can the court direct an enquiry to ascertain the facts before deciding whether to grant anticipatory bail?
Ratio Decidendi: 1. A person apprehending arrest for a non-bailable offense can directly approach the High Court or the Court of Session for anticipatory bail under Section 438 of the CrPC. The court cannot decline to entertain the application solely on the ground that the petitioner has not moved the Court of Session. 2. The court has a wide discretion in granting or refusing anticipatory bail, which must be exercised judicially and in accordance with established principles. The court should consider various factors, including the nature and seriousness of the charges, the context of the events leading to the accusation, the likelihood of the applicant absconding, the possibility of tampering with witnesses, and the larger interests of the public or the State. 3. A petitioner whose application for anticipatory bail is dismissed by the Sessions Judge may renew the prayer before the High Court. Such an order is not illegal or prejudicial. 4. The court may direct an enquiry to ascertain the facts before deciding whether to grant anticipatory bail.
Final Decision: The court dismissed the applications for anticipatory bail filed by petitioners 2, 3, and 4. The application filed by petitioner 1 was allowed, subject to furnishing bail bond and sureties, and conditions as laid down under Section 438(2) of the CrPC.
This application has been disposed of on 21.2.1985 with a promise that reasoned JUDGMENT : shall follow for the conclusions that I have already recorded.
2. After the JUDGMENT : of the Supreme Court in Gurbaksh Singh Sibbia etc. v. The State of Punjab (A. I. R. 1980 Supreme Court 1632) no occasion to decide the scope of section 438 of the Code of Criminal Procedure should arise. Mr. Balbhadra Prasad Singh, learned counsel for the petitioners has, however, insisted that this Court should spell out when shall it entertain application for bail in anticipation of arrest. I am doing so only to reiterate the words of the Supreme Court-
"Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the Courts, by devising a formula which will confine the power to grant anticipatory bail within a strait-jacket. While laying down cast iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even Judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises. Therefore, even if we were to frame a 'Code for the grant of anticipatory bail', which really is the business of the legislature, it can at best furnish broad guidelines and cannot compel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms of express, relegated the decision of that question to the discretion of the court, by providing that it may grant bail "if it thinks fit". The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion concerned upon the Courts by law".
An attempt by the High Court of Punjab and Haryana to lay down some rules of caution, in Gurbaksh Singh has been rejected, in words of the Supreme Court:-
"A person who has yet to lose his freedom by being arrested asks for freedom in the event, of arrest. That in the stage at which it is imperative to protect his freedom, in so far as one may, and to give full play to the presumption that he is innocent.
In fact, the stage at which anticipatory bail is generally sought, brings about its striking dissimilarity with the situation in which a person who is arrested for the commission of a non-bailable offence, asks for bail. In the latter situation, adequate data is available to the Court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions mentioned in section 437 of the Code of Criminal Procedure. The true question is whether by a process of construction, the amplitude of judicial discretion which is given to the High Court and the Court of Session to impose such conditions as they may think fit while granting anticipatory bail, should be cut down by reading into the statute conditions which are not to be found therein, like those evolved by the High Court or canvassed by the learned Additional Solicitor General. Our answer, clearly and emphatically, is in the negative. The High Court and the Court of Session to whom the application for anticipatory bail is made, out to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in section 437 or which are
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